Court of Appeal dismisses appeal against robbery sentence, upholding disparity due to co-accused guilty plea.
Legislator-Zusammenfassung
KI-generiertThe Court of Appeal dismissed the appellant's appeal against his concurrent sentences for robbery, vehicle theft, and bicycle theft. The appellant argued for sentence reduction based on his co-accused's four-year sentence and personal mitigating factors like a brain injury. The court found the sentencing judge correct in imposing a harsher penalty because the appellant contested his prosecution while the co-accused pleaded guilty, a distinction that justified the disparity despite the co-accused's extensive criminal history.
Legislator-Regeste
KI-generierts. 14 Criminal Justice (Theft and Fraud Offences) Act 2001; s. 112 Road Traffic Act 1961: A sentencing court may impose different sentences on co-accused where one pleads guilty and the other contests the prosecution, and such disparity does not constitute an error of principle.
Schlagwörter
KI-generiertZitierte Gesetzesbestimmungen
KI-generiertVerwandte Entscheide
KI-generiertVolltext
THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
Record No. 175/2014
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Aaron McCarthy
Appellant
Judgment (ex tempore) of the Court delivered on the 19th day of October 2015 by Mr. Justice Mahon
1. This is an appeal against sentences imposed on 29th July 2014 at Dublin Circuit Criminal Court of five years, two years and two
years respectively (all sentences to run concurrently) in relation to three offences, namely, robbery contrary to s. 14 of the Criminal
Justice (Theft and Fraud Offences) Act 2001, taking a vehicle without authority contrary to s. 112 of the Road Traffic Act 1961, and
the theft of a bicycle.
2. The appellant’s appeal against his convictions were dismissed earlier this year by this Court
3. The background to these offences is briefly as follows. On 13th August 2013, the appellant hailed a taxi to take him to Spencer
Dock in Dublin. En route, two additional passengers joined the appellant in the taxi. In the course of the journey the taxi driver, Mr.
Singh, was punched in the face and his mobile phone, bank cards and cash stolen. His taxi was also stolen. A short while later, the
appellant and another man were arrested by gardaí following a chase on foot.
4. The appellant’s co-accused received a sentence of four years imprisonment. The co-accused had one hundred and twenty
previous convictions.
The appellant’s personal circumstances
5. The appellant is twenty two years old; he was eighteen years old at the commission of the offences. He is a father of a baby girl
and has some educational achievements to his credit. In 2009, the appellant suffered a significant brain injury in a road traffic
accident which caused, inter alia, mood swings. He has a large number of previous convictions, some fifty six in total relating to
assaults, criminal damage, burglary, drugs and other offences.
The appellant’s grounds of appeal
6. The appellant relies on a number of grounds of appeal and which he maintains point to errors of principle on the part of the learned
sentencing judge. These are summarised as follows:-
(i) The apparent emphasis on the co-accused’s sentence of four years as being suggestive that a custodial
sentence must be imposed on the appellant.
(ii) The disparity of the sentence imposed on the appellant with that imposed on the appellant’s co-accused. It is
contended for on behalf of the appellant that the fact that he had approximately half the number of previous
convictions recorded against his co-accused justified a lesser sentence being imposed than that imposed on his co-
accused.
(iii) Penalising the appellant for contesting the case.
(iv) The failure of the sentencing judge to identity both the location on the scale of gravity of this offence, and the
appropriate sentence therefore prior to taking account of mitigating factors.
(v) The failure of the sentencing judge to take any or any sufficient account of the appellant’s personal
circumstances, the fact that he suffered a brain injury some years previously, his prospects for rehabilitation (which
his counsel suggested were and are very positive), and his young age.
Decision
7. The appellant’s main submission is based on the fact that the appellant’s co-accused, who had over double the number of previous
convictions than had been recorded against the appellant, received a lesser sentence.
8. At the outset it must be emphasised that the s.14 offence committed by the appellant was particularly serious. It involved a
robbery with considerable violence. Although relatively young at the time, the appellant had amassed a considerable number of
previous convictions. While none of these might, arguably, be classed as being particularly serious, some were of significance and
involved violence, and were relevant to this offence. However, of particular concern is the fact that the appellant committed a
number of offences while on bail for this offence. On the other hand, the offences committed by the co-accused were, while greater
in number, probably less serious in nature, although the learned sentencing judge expressed his view that in their totality the previous
offences of both the appellant and his co-accused were about equal. However, perhaps the most important distinction between the
appellant and his co-accused is the fact that the appellant contested his prosecution while the co-accused pleaded guilty. For
reasons well established in our jurisprudence it is commonly the case that a sentencing court will impose a lesser sentence in the face
of a plea of guilty than might otherwise be appropriate for that offence if no such plea was forthcoming. This is done in recognition of
the fact that a plea of guilty excuses a victim from the ordeal of having to give evidence and in addition, the saving of court time. A
plea of guilty is also an acknowledgment of wrongdoing by an offender.
9. In all the circumstances of this case, the learned sentencing judge was quite entitled, and indeed quite correct, to impose a
sentence on the appellant which was appropriate to the offence he was dealing with, and to the appellant as the offender,
notwithstanding that a co-accused received a different sentence. It is of course appropriate that a sentencing judge should have
regard to a co-accused’s sentence, and ideally, give a reason or reasons why a different sentence is to be imposed on one accused
as compared to the other, or others as the case may be.
10. In this case, there are, helpfully, obvious reasons for the different sentences being imposed. These are the co-accused plea of
guilty as compared to the appellant’s decision to fully contest his prosecution. In addition, the previous convictions recorded against
the appellant, albeit a lesser number than those recorded against the co-accused and the fact that a number of offences were
committed while on bail, clearly justify a distinction in the appropriate sentences in each case. It appears to be the case that the
learned sentencing judge’s reasoning for the imposition of a sentence greater than the four years imposed on the co-accused was,
essentially, the co-accused’s plea of guilty. This does not amount to, as suggested on behalf of the appellant, the imposition of a
penalty for contesting the case. On the contrary, it suggests a discount to the co-accused for pleading guilty.
11. It was also submitted that the learned sentencing judge failed to consider mitigating factors such as the appellant’s personal
circumstances, his previous brain injury and the issue of rehabilitation. Certainly, and perhaps unfortunately, the sentencing judgment
does not specifically refer to any of these, although they were comprehensively opened to the court by counsel for the appellant
immediately prior to sentence been passed. However, this court is nevertheless satisfied that the sentence of five years is the
appropriate sentence for this offender having allowed for the aforesaid mitigating factors.
12. The appeal is therefore dismissed.